Present: Carrico, C.J., Compton, Stephenson,1

 Lacy, Hassell, 

Keenan, and Koontz, JJ. 

SCHOOL BOARD OF THE CITY OF NORFOLK 

v. Record No. 961739 OPINION BY JUSTICE ELIZABETH B. LACY 

 September 12, 1997 

CELESTINE WESCOTT 

 FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

Luther C. Edmonds, Judge 

 Celestine Wescott was employed as a security guard at 

Granby High School by the School Board of the City of Norfolk 

(the School Board) during the 1994-95 school year. On November 

16, 1994, Michael J. Caprio, the principal of Granby High 

School, suspended Wescott pending final action on his 

recommendation that her employment be terminated. Following an 

administrative hearing, the deputy superintendent of schools 

concurred in Caprio's recommendation and, on December 15, 1994, 

the School Board approved Wescott's termination, effective 

November 17, 1994. 

 Wescott filed a bill of complaint against the School 

Board seeking reinstatement with full benefits and back pay. 

After an ore tenus hearing, the trial court ruled that the 

action of the School Board in discharging Wescott was arbitrary 

and capricious and ordered the School Board to pay Wescott "all 

back pay, allowances and benefits for the remainder of the 

school year, 1994-95." We awarded the School Board an appeal 

and, because we conclude that the action of the School Board 

 

 1Justice Stephenson participated in the hearing and 

decision of this case prior to the effective date of his 

retirement on July 1, 1997. 
 2 

was not arbitrary or capricious and was supported by 

substantial evidence, we will reverse the judgment of the trial 

court and enter judgment for the School Board. 

 I. 

 Wescott had been employed as a security guard in the 

Norfolk School System "on and off" for approximately 19 years. 

She had been assigned to Maury High School prior to her 

transfer to Granby High School in 1994. Her annual classified 

personnel contract with the School Board provided that she 

would work "such hours as the school board may designate and 

shall perform such duties . . . as are deemed necessary" and 

that the School Board could dismiss her "for just cause." 

 Wescott's annual performance reviews were favorable, 

although at least two of the reviews contained comments or 

concerns regarding absences from work. Wescott had been absent 

13 days in 1990-91, 18.5 days in 1991-92, 22 days in 1992-93, 

and 49.5 days in the 1993-94 school year. The absences were 

caused by family illness, personal illness, or court 

appearances. The School Board did not question Wescott's 

reasons for these absences, and they were considered "approved" 

absences. 

 James B. Slaughter, the principal while Wescott was 

assigned to Maury High School, told Wescott of his concern 

regarding her absences. Wescott testified that when she met 

with the principal, he told her "how much he needed [her] in 
 3 

the building . . . . He was very concerned about [her] father 

being ill and concerned about [her] taking days out, but he 

knew that [she] had to take them because [her father] was ill." 

 In a March 1994 letter to Wescott, Slaughter acknowledged that 

"[r]egrettably" her father's health had necessitated some of 

her absences, but he again expressed his concern over her 

"level of attendance" which he had discussed with her "on 

several occasions." Slaughter supported Wescott's transfer to 

Granby High School in the spring of 1994. 

 In the fall of 1994, Michael J. Caprio became the 

principal of Granby High School. Wescott had not worked for 

Caprio prior to this time. On October 5, Caprio met with 

Wescott to discuss her absences from work. On that date, 

Wescott had been absent for 7 of the 20 days school had been in 

session. Caprio summarized the meeting in a letter to her in 

which he stated that they needed to "get together and formulate 

a plan of action so that we can assist you in improving your 

attendance at Granby High School." 

 During a second conference on October 14, Caprio reviewed 

Wescott's attendance records for previous years with her. 

Wescott testified that she explained that the reasons for all 

of her prior absences were properly documented, but Caprio told 

her that if she was absent one more time, she was "going to be 

terminated." Apparently, no plan of action was formulated at 

that meeting, but in an October 14 letter to Wescott referring 
 4 

to "our conference" on that date, Caprio stated that he hoped 

Wescott understood how her absences impacted her job as a 

security guard, that he was pleased with her job performance, 

and that, although he remained concerned over her absences to 

date, "I trust that this attendance problem has been resolved 

at this meeting." 

 When Wescott reported for work on November 16, 1994, 

Caprio gave her a memorandum written by him, asked her to 

remove her Granby jacket, and told her to leave the building. 

The memorandum referred to the prior conferences and letters 

regarding Wescott's absences and the impact of the absences on 

the security program at the school. It went on to point out 

that since the October 14 conference, Wescott was absent on 5 

more occasions, bringing her total absences to 12 days of the 

first 47 school days. Based on this record, Caprio concluded 

that "no significant improvement in your attendance has been 

evident." The memorandum stated that Caprio was suspending 

Wescott without pay immediately and recommending to the 

superintendent that she be terminated. The memorandum also 

informed her that she had seven days to contact the deputy 

superintendent to appeal Caprio's recommendation. 

 Wescott appealed Caprio's recommendation, and a hearing 

was held in accordance with school board policy. Wescott, her 

representative Malcolm Staples, Caprio, and the head of 

personnel for the school system were present at the hearing 
 5 

conducted by Deputy Superintendent J. Frank Sellew. Wescott's 

representative presented documentation of her absences and 

argued that she should not be discharged for excessive 

absenteeism. Caprio responded that Wescott's absences 

"crippled" the security program at the school and interfered 

with the "safe and ordinary conduct of the school." Caprio 

also stated that Wescott had been warned about the consequences 

of her continued absences. 

 In a letter dated November 30, 1994, Sellew informed 

Wescott that he supported Caprio's recommendation. This 

recommendation was subsequently adopted by the School Board at 

its December 15, 1994 meeting. 

 II. 

 The standard of review which a trial court must apply in 

considering a challenge to a school board's exercise of the 

supervisory authority granted it by Article VIII, Section 7 of 

the Virginia Constitution is well established. 

 [A] school board's decision 'will not be disturbed by 

the courts unless the board acted in bad faith, 

arbitrarily, capriciously, or in abuse of its 

discretion, or there is no substantial evidence to 

sustain its action.' 

Bristol Virginia School Board v. Quarles, 235 Va. 108, 119, 366 

S.E.2d 82, 89 (1988)(quoting County School Board of 

Spotsylvania County v. McConnell, 215 Va. 603, 607, 212 S.E.2d 

264, 267 (1975)). In this case, the trial court set aside the 

decision of the School Board on the sole ground that it was 
 6 

arbitrary and capricious. This conclusion rested on the trial 

court's finding that, after the School Board "granted" all of 

Wescott's "applications for sick leave requests," it discharged 

her and justified the discharge by claiming that Wescott 

"abused sick leave or annual leave policy." 

 A review of the record shows, however, that the School 

Board neither claimed that Wescott abused the sick leave or 

annual leave policy nor based its discharge decision on an 

abuse of that policy.2

 The stated reason for firing Wescott 

was not that she had abused her "granted" sick leave, but that 

her continued "excessive absenteeism" "compromised the security 

and safety of the students and staff at Granby High School," 

had a "crippling effect" on the security program, and "plac[ed] 

the Norfolk School Board's number one goal in serious 

jeopardy." Furthermore, the School Board asserted that Wescott 

had been warned "about the consequences of further absences" 

 

 2The school board's leave policies are not part of this 

record; however, in his November 16, 1994 letter to Wescott, 

Caprio stated that while she had exhausted her allocated sick 

leave for the year as of that date, she had one remaining day 

of personal leave available for the remainder of the 1994-95 

school year. We note that in her bill of complaint, Wescott 

sought a determination of whether the School Board "abrogated" 

its contract; however, Wescott did not argue at trial or on 

appeal that, because at the time of her dismissal, she had not 

exhausted the number of leave days to which she was entitled 

for the 1994-95 school year, the dismissal was a breach of 

contract. Cf. McConnell, 215 Va. at 603, 212 S.E.2d at 265 

(teacher brought breach of contract action against school 

board). Nor did she argue that dismissal prior to her 

exhaustion of allocated leave was an arbitrary or capricious 

act. 
 7 

and had shown "no significant improvement" in attendance 

following discussions regarding the need for such improvement. 

 We turn to the record to determine whether it supports the 

reasons for termination advanced by the School Board. The 

record reflects that security in Norfolk's high schools is a 

significant concern to the School Board and administration. To 

insure an effective security program, high schools in the 

system are required to have four security guards regularly in 

attendance. Continuity in the security staff is important to 

the success of the security program. Wescott herself testified 

that security guards were required to be familiar with the 

school building; to develop a rapport with the students; and to 

know the students, including those with disciplinary problems 

or physical or mental conditions. Although there was a "pool" 

of substitute security guards who could be contacted in the 

event a regular guard was absent, the pool was limited and 

served all 13 schools in the system. Deputy Superintendent 

Sellew testified that "sometimes you get one and sometimes you 

don't" and that the substitute guards generally do not know the 

student body. This, in Sellew's opinion, "really does hamper 

the safety and security of the operation within the school." 

 The record is also replete with instances where the need 

for consistent attendance by security guards was explained to 

Wescott. Wescott was told more than once of the impact her 

absence had on the security program. School administrators 
 8 

told her of their concern over her absenteeism and expressed a 

desire to work with Wescott to address the problem. Caprio's 

decision to suspend Wescott and recommend her termination was 

made only after at least two discussions with her in 1994, 

including a review of her attendance record which showed a 

continuing increase in the number of days absent each school 

year. During these discussions, Wescott was informed that if 

she was absent one more time, she would be terminated. 

Following the second discussion on October 14, she was absent 

an additional 5 days, bringing the total to 12 absences in the 

first 47 days of the 1994-95 school year. 

 There is nothing in the record to suggest that Wescott was 

treated differently than other classified personnel employed by 

the School Board. In discharging Wescott, the School Board 

followed the normal procedures for appeal and review of the 

principal's recommendation.3

 On appellate review of the trial court's decision, we must 

accept the trial court's findings of fact as true unless they 

are without support in the record. Quantum Dev. Co., Inc. v. 

Luckett, 242 Va. 159, 161, 409 S.E.2d 121, 122 (1991). Here, 

the record does not support the trial court's finding that the 

School Board's justification for terminating Wescott was that 

 

 3The trial court also held that Wescott was denied due 

process, and the School Board assigned error to that holding. 

However, Wescott conceded on appeal that she was not denied due 

process. 
 9 

she abused sick leave or annual leave policy; however, it does 

support the School Board's position that she was fired because, 

after repeated counseling and warnings, her continued excessive 

absenteeism compromised the security program at Granby High 

School. 

 Actions are defined as arbitrary and capricious when they 

are "willful and unreasonable" and taken "without consideration 

or in disregard of facts or law or without determining 

principle." Black's Law Dictionary 105 (6th ed. 1990). In 

Johnson v. Prince William County School Board, 241 Va. 383, 404 

S.E.2d 209 (1991), we noted that an act was arbitrary and 

capricious if the school board "departed from the appropriate 

standard in making its decision." Id. at 389 n.9, 404 S.E.2d 

at 212 n.9. 

 Based on this record, we cannot conclude that the School 

Board's decision to discharge Wescott was arbitrary and 

capricious. Under the terms of the contract of employment, the 

School Board retained the right to terminate Wescott for just 

cause. We conclude that the reasons given for the School 

Board's termination decision constituted just cause and that 

the termination decision was supported by substantial evidence. 

 Accordingly, we will reverse the judgment of the trial 

court and enter final judgment in favor of the School Board. 

Reversed and final judgment.